Schrager v. City of Albany

• Decision Date: 01 July 1950
• Citation: 197 Misc. 903
• Court: New York Supreme Court
• Parties: Jack B. Schrager, Plaintiff,<BR>v.<BR>City of Albany, Defendant.

197 Misc. 903

Jack B. Schrager, Plaintiff,

v.City of Albany, Defendant.

July 1, 1950.

Bernard Ellenbogen for plaintiff.

James J. McGuiness, Corporation Counsel (Samuel Jacobs of counsel), for defendant.

TAYLOR, J.

The plaintiff seeks a judgment in this action declaring chapter 10 of the general ordinances of the City of Albany enacted May 5, 1890, as amended, invalid, void and unconstitutional and enjoining the enforcement of its provisions against him. The motion is for an injunction pendente lite and the questions presented arise on the application for that relief.

The plaintiff, under the assumed business name of "Tom Thumb Ice Cream Co." is the owner and operator of a retail ice cream business and in the conduct thereof, employs salesmen to peddle and sell ice cream from trucks and other vehicles on the public streets in several cities and municipalities, including the city of Albany. The complaint attacks the authority of the defendant to enact the ordinance under the proper and valid exercise of its police power. It alleges that the plaintiff has an investment of approximately $90,000 consisting of thirty-five trucks, stock, refrigerators, freezers and leasehold interests in real property, that 25% of his business is done in the city of Albany and that he is losing approximately $300 daily in gross income through the enforcement of the ordinance. He further alleges that in the latter part of April, 1949, he was notified by the officials of the City of Albany that the operation of his business was not consistent with the policy of that city and that each of the provisions of the ordinance which had only shortly before that date been amended would be strictly enforced as a penal statute. Thereafter, ten of his employees were arrested for alleged violations of some of the provisions of the enactment, one of whom pleaded guilty and was fined, another of whom was tried by the Police Justice of the defendant city, found guilty and also fined. It is contended that considerable publicity accompanied those incidents with embarrassment and annoyance to plaintiff and his employees, resulting in the leaving of his employment by eight of them and the threatened quitting of others. The complaint asks, among other things, to restrain the city and its Police Justice from making further arrests under the ordinance and from proceeding with pending trials of plaintiff's employees in that court.

The defendant urges that the court has not jurisdiction to entertain this application for the reason that a court of equity will not stay criminal proceedings since its concern is only with the protection of civil and property rights. The exception to that rule is well stated by EDGCOMB, J., in Cowan v. City of Buffalo (247 App. Div. 591, 597) in these words: "A court of equity will assume jurisdiction, and will enjoin the enforcement of a void ordinance where its enforcement will affect property rights and work irreparable injury. The criminality of the act complained of will not act as a bar to such relief where an injunction is necessary for the protection of one's property rights." (Cf. Biddles, Inc., v. Enright, 239 N.Y. 354; Civ. Prac. Act, § 877.)

The ordinance which is challenged is entitled "Venders, Hawkers, Peddlers" and is chapter 10 of the "Compilation of Ordinances and Relevant Statutes" of the City of Albany. It was first enacted in 1890, amended from time to time, the last amendment being the addition of section 12 thereto in July, 1948. Essentially, plaintiff attacks sections 1, 4, 8 and 12 thereof. Substantially and pertinently section 1 requires all peddlers to be licensed but permits the issuance of a license only to a person who has been a resident of Albany for a least six months; section 4 prohibits vehicles from remaining on the public street for longer than five minutes while offering goods for sale, selling the same or receiving payment therefor and from using a horn or other instrument for the purpose of giving notice of the approach of a vehicle; section 8 excludes from compliance with those provisions farmers, market gardeners, milkmen and persons having a stated place of business in Albany; section 12 is directed exclusively at ice cream venders who are required to be licensed and prohibits their engaging in business on certain named streets and parkways, within 100 feet of any street intersection and 300 feet of any school building.

The plaintiff contends that the enactment is arbitrary, unreasonable, oppressive, discriminatory, unconstitutional and violative of the statute in that the provisions discriminate against a nonresident who is not permitted to obtain a license thereunder, make an illegal distinction between a vender having a stated place of business in Albany and...